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Indictment Number 4447/12 

-against- : 

SERGEY ALEYNIKOV, : Decision & Order 

Defendant. : 



Defendant moves to dismiss the instant indictment on the 
ground of facial insufficiency, double jeopardy, collateral 
estoppel, vindictive prosecution and in the interest of justice. 

Background 1 

Goldman Sachs & Co. ("Goldman") is an international 
financial services firm which engages in high frequency trading 
("HFT") on securities and commodities markets, such as the New 
York Stock Exchange ("NYSE") and NASDAQ Stock Market ("NASDAQ") , 
as part of its business. From May 2007 through June 2009, 
defendant was employed by Goldman as a computer programmer in its 
Equities Division, developing and maintaining certain computer 
programs for the company's proprietary HFT system. A HFT system 
is a mechanism for making large volumes of trades in securities 

1 The Court has adopted or adapted the relevant portions of 
United States Court of Appeals for the Second Circuit' s 
description of the background of this case through the Court' s 
dismissal of the federal action and has added or deleted from it 
where relevant (see United States v. Aleynikov , 676 F.3d 71, 73- 
75 [2d Cir. 2012] ) . 

and commodities based on trading decisions effected in fractions 
of a second through algorithms that incorporate rapid market 
developments and data from past trades. The computer programs 
used to operate Goldman's HFT system are of three kinds: [1] 
market connectivity programs that process real-time market data 
and execute trades; [2] programs that use algorithms to determine 
which trades to make; and [3] infrastructure programs that 
facilitate the flow of information throughout the trading system 
and monitor the system's performance. Aleynikov's work focused on 
developing source codes for this last category of infrastructure 
programs in Goldman's HFT system. HFT is a competitive business 
that depends in large part on the speed with which information 
can be processed to seize fleeting market opportunities. Goldman 
closely guards the secrecy of each component of the system, and 
does not license the system to anyone . Goldman ' s confidentiality 
policies bound defendant to keep in strict confidence all the 
firm's proprietary information, including any intellectual 
property created by defendant. 2 He was barred as well from taking 

defendant, as a condition of his employment, was required 
to sign a global information security policy, which provided in 
relevant part that he would "hold all confidential and 
proprietary information and materials in strict confidence and, 
except for the above authorized uses, will not, nor permit any 
agent to give, disclose, copy, reproduce, sell, assign, license, 
market or transfer confidential and proprietary information and 
materials to any person, firm or corporation..." The security 


it or using it when his employment ended. 

By 2009, Aleynikov was earning $400,000, the highest-paid of 
the twenty- five programmers in his group. In April 2009, he 
accepted an offer to become an Executive Vice President at Teza 
Technologies LLC, a Chicago-based startup firm, that was looking 
to develop its own HFT system. Aleynikov was hired, at 
approximately $1 million a year, to develop the market 
connectivity and infrastructure components of Teza's HFT system. 
Teza's founder (a former head of HFT at Chicago-based hedge fund 
Citadel Investment Group) emailed Aleynikov (and several other 
employees) in late May, conveying his expectation that they would 
develop a functional trading system within six months. It 
usually takes years for a team of programmers to develop a HFT 
system from scratch. 

After defendant resigned from Goldman in April of 2009, he 
was allowed to remain at the firm for five weeks more . 
Aleynikov' s last day at Goldman was June 5, 2009. 

From March 30, 2009 until May 2009, defendant uploaded data 

policy also provided that defendant "irrevocably assign" to 
Goldman and that Goldman would have "exclusive ownership rights, 
including, without limitation, all patents, copyright and trade 
secret rights with respect to any work, including, but not 
limited to, any invention, discoveries, concepts, ideas or 
information, conceived" by defendant during the course of his 
employment with Goldman. 99 


from Goldman to a "subversion" website, with an address of At approximately 5:20 p.m., just before his 
going-away party, defendant encrypted and uploaded to the 
subversion server in Germany more than 500,000 lines of source 
code for Goldman's HFT system, including code for a substantial 
part of the infrastructure, and some of the algorithms and market 
data connectivity programs. Some of the code pertained to 
programs that could operate independently of the rest of the 
Goldman system and could be integrated into a competitor's 
system. In addition to proprietary source code, Aleynikov also 
transferred some open source software licensed for use by the 
public that was mixed in with Goldman's proprietary code. 
However, he uploaded a greater number of files that contained 
proprietary code than open source code 3 . 

After uploading the source code, Aleynikov deleted the 
encryption program as well as the "bash" history of his computer 
commands. When he returned to his home in New Jersey, Aleynikov 
downloaded the source code and other material he had stored on 
the server in Germany to his home computer, and copied some of 
the files to other computer devices he owned. 

3 "Open source" code is available to the public on-line at no 
cost. For instance, part of Goldman's HFT system runs on the 
Linux operating system which is completely composed of open 
source code . 


Defendant' s uploads to the subversion website attracted the 
attention of Goldman's computer security team on June 29, 2009. 
Goldman then alerted the authorities. On July 2, 2009, Aleynikov 
flew from New Jersey to Chicago to attend meetings at Teza. He 
brought with him a flash/ thumb drive and a laptop containing 
portions of the Goldman source code . When Aleynikov flew back 
the following day, he was arrested by the Federal Bureau of 
Investigation ("FBI") agents at Newark Liberty International 
Airport. The source code was also found on defendant's home 
computer . 

In a statement to FBI agent Michael McSwain, defendant 
admitted to intentionally collecting both open and proprietary 
source code, with the idea of separating out the open source code 
once he had downloaded it to his home computer. 

Defendant was initially charged in a federal indictment that 
accused him of violating the Economic Espionage Act of 1996 
("EEA") , 18 USC § 1832, by downloading a trade secret "that is 
related to or included in a product that is produced for or 
placed in interstate or foreign commerce," with the intent to 
convert such trade secret and to injure its owner, to the 
economic benefit of anyone other than the owner (see 18 U.S.C. § 
1832(a) [Count One]); and with violating the National Stolen 
Property Act ("NSPA") , 18 U.S.C. § 2314, which makes it a crime 


to " transport [ ] , transmit [ ] , or transfer [ ] in interstate or 
foreign commerce any goods , wares , merchandise , securities or 
money, of the value of $5,000 or more, knowing the same to have 
been stolen, converted or taken by fraud" (18 U.S.C. § 2314 
[Count Two] ) . A third count charged him with unauthorized 
computer access and exceeding authorized access in violation of 
the Computer Fraud and Abuse Act ("CFAA") , (18 U.S.C. § 1030). 

Aleynikov moved to dismiss the federal indictment for 
failure to state an offense. On September 3, 2010, the district 
court dismissed Count Three of the indictment after finding that 
defendant's conduct did not fall within the federal anti-hacking 
statute but otherwise denied Aleynikov 's motion (see United 
States v. Aleynikov , 737 F.Supp.2d 173 [SDNY 2010]). 

After a jury trial , defendant was convicted on both 
remaining counts and sentenced to 97 months of imprisonment 
followed by a three-year term of supervised release, and was 
ordered to pay a $12,500 fine. Bail pending appeal was denied 
because Aleynikov, a dual citizen of the United States and 
Russia, was feared to be a flight risk. 

On February 17, 2012, Aleynikov appealed his conviction and 
sentence, arguing that his conduct did not constitute an offense 
under either the NSPA or EEA. The Second Circuit reversed 
Aleynikov 's convictions on both counts, concluding, as the People 


point out, that defendant's conduct did not fit within the narrow 
confines of the two federal statutes under which he was charged, 
(see United States v. Aleynikov , 676 F.3d 71, 73- 75 [2d Cir. 
2012]; see Affirmation of ADA Joanne Li, dated November 29, 2012, 
p. 3). 

Thereafter, in April 2012, the Office of the New York County 
District Attorney ("DANY") became aware of the Second Circuit's 
decision reversing defendant's federal conviction (see 
Affirmation of ADA Joanne Li, dated November 29, 2012, p. 1-2, f 
3). In reversing defendant's conviction, the Second Circuit 
observed : 

The conduct found by the jury is conduct 

that [defendant] should have known was in 

breach of his confidentiality obligations 

to Goldman, and was dishonest in ways that 

would subject him to sanctions ; but he could 

not have known that it would offend this criminal 

law or this particular sovereign, 

referring to the federal statutes under which he was 

prosecuted ( United States v. Aleynikov , 676 F.3d, at 82). 

The People took this as an "invitation" (see Affirmation of 

ADA Joanne Li, dated November 29, 2012, p. 4). After reviewing 

the Second Circuit's decision, DANY contacted the federal 

prosecutor' s office to express interest in pursuing a state 

prosecution of defendant and on July 31, 2012, charged defendant, 

by arrest warrant, with one count of Unlawful Duplication of 


Computer Related Material in the First Degree (Penal Law § 
156.30[1]) and one count of Unlawful Use of Secret Scientific 
Material (Penal Law § 165.07) . A New York County Grand Jury 
then indicted defendant on each of the counts in the arrest 
warrant . 

The motion for inspection and/or dismissal of the Grand Jury 
minutes is granted to the extent that the Court has examined the 
Grand Jury minutes in camera and found both the testimonial and 
documentary non-hearsay evidence before the Grand Jury to be 
legally sufficient, the instructions to be proper and the 
proceeding to be otherwise unimpaired. The issues in the 
defendant's motion, while numerous, are straightforward, and 
disclosure of the Grand Jury minutes is not necessary to their 
resolution (see CPL § 210. 30 [3]). Accordingly, the motion to 
dismiss the indictment on these grounds is denied. 

The Court specifically notes that the indictment satisfies 
the CPL 200.50(7) requirement that the indictment contain a 
"plain and concise factual statement in each count which, without 
allegations of an evidentiary nature [and it] ... asserts facts 
supporting every element of the offense charged and the 
defendant's or defendants' commission thereof with sufficient 
precision to clearly apprise the defendant or defendants of the 
conduct which is the subject of the accusation" (see People v 


Iannone, 45 N.Y.2d 589 [1978]). "[T]he charges use the language 
of the statutes involved, unless the language is too broad" 
( People v. Perez , 93 AD3d 1032, 1034 [3 rd Dept.], lv. den. 19 NY3d 
1000 [2012] , citing Iannone, 45 N.Y.2d, at 599) . In this case, 
the indictment not only tracked the statutory language, it 
provided additional information as to the location, date and time 
of the offenses, thus alleging "where, when and what" defendant 
purportedly did (Perez, 93 AD3d, at 1034, quoting Iannone, 45 
N.Y.2d at 598) . 

With respect to the legal sufficiency of the indictment, an 
indictment is legally sufficient when "it possesses competent 
evidence that establishes every element of an offense by legally 
sufficient evidence and provides reasonable cause to believe that 
a person has committed such offense" ( People v. Williams , 20 AD3d 
72 [1 st Dept.], lv. denied 5 NY3d 811 [2005]; see CPL 190.65[1] 
People v. Swamp , 84 N.Y.2d 725, 729-730 [1995]). "[A] reviewing 
court must consider ^whether the evidence viewed in the light 
most favorable to the People, if unexplained and uncontradicted, 
would warrant conviction by a petit jury'" ( People v. Grant , 17 
NY3d 613, 616, quoting People v. Bello , 92 N.Y.2d 523, 525 
[1998], quoting People v. Jennings , 69 N.Y.2d 103, 114 [1986]). 
Legally sufficient evidence is "competent evidence which, if 
accepted as true, would establish every element of an offense 


charged" ( Grant , 17 NY3d, at 616, quoting CPL 70.10 [1]; see also 

People v. Swamp , 84 N.Y.2d, at 730; People v. Mayo , 36 N.Y.2d 

1002, 1004 [1975]). "In the context of a Grand Jury proceeding, 

legal sufficiency means prima facie proof of the crimes charged, 

not proof beyond a reasonable doubt" ( id. , quoting Bello , 92 

N.Y.2d, at 526). Thus, a reviewing court must determine "whether 

the facts, if proven, and the inferences that logically flow from 

those facts supply proof of every element of the charged crimes , " 

and whether "the Grand Jury could rationally have drawn the 

guilty inference" ( id. , quoting People v. Deegan , 69 N.Y.2d 976, 

979 [1987]) and defer all questions as to whether the weight or 

quality of the evidence would warrant conviction ( Swamp , 84 N.Y., 

at 730; see People v. Williams , 20 AD3d 72) . 

The Court notes that the Grand Jury presentation was 

comprised of non-hearsay testimonial and documentary evidence. 

With respect to the Unlawful Duplication of Computer Related 

Material in the First Degree count, Penal Law § 156.30(1) states: 

A person is guilty of unlawful duplication 
of computer related material in the first 
degree when having no right to do so, he ... 
copies, reproduces or duplicates in any 
manner : 

1. any computer data or computer program 
and thereby intentionally and wrongfully 
deprives or appropriates from an owner thereof 
an economic value or benefit in excess of 
two thousand five hundred dollars; . . . 


Penal Law § 156.00(1) defines "Computer" as 

a device or group of devices which, by- 
manipulation of electronic, magnetic, optical or 
electrochemical impulses , pursuant to a computer 
program, can automatically perform arithmetic, 
logical, storage or retrieval operations with or 
on computer data, and includes any connected or 
directly related device, equipment or facility 
which enables such computer to store, retrieve or 
communicate to or from a person, another computer 
or another device the results of computer 
operations , computer programs or computer data . 

Penal Law § 156.00(2) defines "Computer program" as 

property and means an ordered set of data 
representing coded instructions or statements 
that, when executed by computer, cause the 
computer to process data or direct the computer 
to perform one or more computer operations or both 
and may be in any form, including magnetic storage 
media, punched cards, or stored internally in the 
memory of the computer. 

Penal Law § 156.00(3) defines "Computer data" as 

property and means a representation of 
information, knowledge, facts, concepts or 
instructions which are being processed, or have 
been processed in a computer and may be in any 
form, including magnetic storage media, punched 
cards, or stored internally in the memory of the 
computer . 

Penal Law § 156.00(4) defines "Computer service" as 

any and all services provided by or through 
the facilities of any computer communication 
system allowing the input, output, examination, or 
transfer, of computer data or computer programs 
from one computer to another. 

Penal Law § 156.00(6) defines "Computer network" as 


the interconnection of hardwire or wireless 
communication lines with a computer through remote 
terminals, or a complex consisting of two or more 
interconnected computers . 

Penal Law § 156.00(7) defines "Access" as 

to instruct, communicate with, store data in, retrieve 
from, or otherwise make use of any resources of a 
computer, physically, directly or by electronic means. 

Penal Law § 156.00(8) defines "Without authorization" as 

to use or to access a computer, computer service or 
computer network without the permission of the owner or 
lessor or someone licensed or privileged by the owner 
or lessor where such person knew that his or her use or 
access was without permission or after actual notice to 
such person that such use or access was without 
permission. It shall also mean the access of a 
computer service by a person without permission where 
such person knew that such access was without 
permission or after actual notice to such person, that 
such access was without permission. 

Proof that such person used or accessed a computer, 
computer service or computer network through the 
knowing use of a set of instructions, code or computer 
program that bypasses, defrauds or otherwise 
circumvents a security measure installed or used with 
the user's authorization on the computer, computer 
service or computer network shall be presumptive 
evidence that such person used or accessed such 
computer, computer service or computer network without 
authorization . 

Here , there was sufficient evidence that while defendant may 
have had a limited right to copy or reproduce some of the 
material for work-related reasons, he had no right to install and 
use "subversive" software on Goldman Sachs' computer for the 
purpose of copying, reproducing or duplicating in any manner the 


copyrighted source codes or any other copyrighted computer data 
or computer program to intentionally and wrongfully deprive or 
appropriate from Goldman Sachs, as the materials' "owner," an 
economic value or benefit in excess of two thousand five hundred 
dollars. The evidence includes testimony and exhibits that 
establish that on two or more occasions, defendant, without 
permission or authority from Goldman Sachs, copied and 
transferred Goldman Sachs' source code for its high frequency 
trading platform from Goldman Sachs' computers to a foreign 
server in Germany using subversive software, and then downloaded 
this material onto his personal computers and thumb drives, thus 
making a tangible electronic reproduction of confidential and 
proprietary materials related to Goldman's source code. Indeed, 
defendant does not contest that he actually did reproduce the 
relevant materials. Additionally, the Grand Jury could infer 
from the confidentiality/employment agreement signed by defendant 
when he was hired by Goldman Sachs as well as the employee 
handbook setting forth the firm' s policies forbidding the 
disclosure of information concerning or contained in the programs 
on the firm' s computers that defendant' s actions "were motivated 
either by an intention to sell them, use them in his new position 
in order to advance himself or to save himself labor, or at the 
very least, to study and learn from them" ( People v. Katakam , 172 


Misc. 2d 943, 947 [Sup. Ct. N.Y.Co. 1997]). This is further 

supported by evidence that as part of his new job, for which 

defendant was being paid a million dollars, his new employer 

wanted a program, which had taken years to develop at Goldman 

Sachs, up and running in six months. There is also evidence that 

the material copied and reproduced by defendant was worth 

millions to Goldman Sachs . Thus , the evidence is clearly 

sufficient to show that defendant' s actions deprived Goldman 

Sachs of and appropriated from Goldman Sachs an economic benefit 

in excess of $2500. 

Likewise, Penal Law § 165.07 states: 

A person is guilty of unlawful use of secret 
scientific material when, with intent to 
appropriate to himself or another the use of 
secret scientific material, and having no right 
to do so and no reasonable ground to believe 
that he has such right, he makes a tangible 
reproduction or representation of such secret 
scientific material by means of writing, 
photographing, drawing, mechanically or 
electronically reproducing or recording such 
secret scientific material. 

Penal Law §165.00(6) defines "Secret scientific material" as: 

a sample, culture, micro-organism, specimen, 
record, recording, document, drawing or any other 
article, material, device or substance which 
constitutes, represents, evidences, reflects, or 
records a scientific or technical process, 
invention or formula or any part or phase thereof, 
and which is not, and is not intended to be, 
available to anyone other than the person or 
persons rightfully in possession thereof or 


selected persons having access thereto with his 
or their consent, and when it accords or may accord 
such rightful possessors an advantage over 
competitors or other persons who do not have 
knowledge or the benefit thereof. 

In People v. Russo , 131 Misc. 2d 677 (Cty Ct. Suffolk Co. 1986), 

found that computer programs qualifies as "secret scientific 

material" whose unlawful use was prohibited by Penal Law §165.07. 

As the Russo Court notes: 

. . .a computer program does not just exist. 
It is the result of time spent and effort 
exerted on the part of a trained individual 
or individuals . Because such training 
requires study and the learning associated 
with such study results in a specialized 
knowledge, the resulting program— in accordance 
with the above definitions— can therefore be 
described as both "scientific" and "technical." 
Because the "computer program" directs a computer 
to perform steps in a prescribed procedure and 
operations on data to produce a desired result, 
it is a "process." Further, because a "computer 
program" does not exist until it is written or 
created as a result of an individual ' s study or 
experimentation, or, if the computer program 
already exists, and is modified in some way to 
make it different or new, it is, an "invention. 
"Finally, because a "computer program" represents 
a method of doing something that relies on "an 
established model or approach," a "computer 
program" is a "formula" in accordance with the 
definition above. Therefore, based on the above, 
a "computer program" qualifies as "a scientific or 
technical process, invention, or formula" as 
envisioned by Penal Law § 155.00(6) . 

( id. , at 681) . 

Here, the Grand Jury minutes again established through 


testimony and exhibits that defendant, at the very least, with 
intent to appropriate to himself "secret scientific material," 
and knowing he no right to do so because the copy was not made 
for his work at Goldman, made a copy of certain Goldman computer 
programs and source code, which were "secret scientific material" 
(see People v. Russo , supra) . Thus, the evidence in support of 
these counts were also legally sufficient. 

Defendant also claims that the instant prosecution is barred 
by State and Federal double jeopardy as well as statutory double 
jeopardy. Here, defendant was prosecuted in federal court for 
violating the EEA and NSPA. A jury convicted him of these 
crimes . On appeal , the Circuit Court of Appeals for the Second 
Circuit reversed the conviction and dismissed the charge, 
"reasoning that while defendant breached his confidentiality 
obligations to Goldman, his conduct did not fall within the scope 
of the charged federal offenses" ( Aleynikov v. The Goldman Sachs 
Group , Inc . , 2012 WL 6603397, *3 [NDNJ 2012]). Upon the 
dismissal of the federal charges against defendant, the New York 
County District Attorney presented the case to a New York County 
Grand Jury, which indicted defendant of violating Penal Law §§ 
156.30(1) and 165.07. 

The Double Jeopardy clause of the Fifth Amendment provides 
that an individual may not be tried twice for the same offense 


except in limited circumstances . However, under the "dual 

sovereignty" doctrine, successive State and federal prosecutions 

for the same conduct are not prohibited by the United States 

Constitution's Double Jeopardy Clause (see Matter of Polito v. 

Walsh , 8 NY3d 683, 686 [2007], rearg. denied 9 NY3d 918 [2007], 

citing Bartkus v. Illinois , 359 U.S. 121 [1959]). Thus, the 

Blockburger "same-elements" test does not apply here (see 

Blockburger v. United States , 284 U.S. 299, 304 [1932]; Matter of 

Polito v. Walsh , 8 NY3d, 689-690) . 

In New York, double jeopardy is both constitutional and 

statutory ( Matter of Polito v. Walsh , 8 NY3d, at 686) . Statutory 

double jeopardy is governed by CPL 40.20, which "generally 

prohibits successive prosecutions for two offenses based on a 

single act or criminal transaction" ( People v. Bryant , 92 N.Y.2d 

216, 226 [1998] [citations omitted]; see Matter of Polito v. 

Walsh , 8 NY3d, at 686) . Despite this statutory bar, pursuant to 

CPL 40.20 (2) (f ) , sequential prosecutions are permitted for 

offenses arising from the same criminal transaction where: 

One of the offenses consists of a violation of 
a statutory provision of another jurisdiction, 
which offense has been prosecuted in such other 
jurisdiction and has there been terminated by a 
court order expressly founded upon insufficiency 
of evidence to establish some element of such 
offense which is not an element of the other 
offense, defined by the laws of this state 


(see Matter of Polito v. Walsh , 8 NY3d, at 686-687) . 

In this case, the first prosecution of defendant was for 
violations of statutory provisions of another jurisdiction, 
namely, the federal EEA and NSPA statutes. Defendant was 
prosecuted for it in "such other jurisdiction," namely, the 
federal court. The federal prosecution was terminated by the 
Second Circuit. The Second Circuit's order was "expressly 
founded on insufficiency of the evidence" to establish that 
Goldman' s HFT system was intended for interstate or foreign 
commerce as required by the EEA and that the intangible property 
stolen by defendant, such as the source codes, constituted stolen 
"goods," "wares" or "merchandise" under the NSPA. There is no 
corresponding requirement under either Penal Law 156.30(1) or 
165.07, which are the New York State statutes that the defendant 
is accused of violating, that the property in question be 
intended for interstate commerce. Similarly, there is no 
requirement under either Penal Law 156.30(1) or 165.07 that the 
property stolen by defendant, be tangible "good," "wares" or 
"merchandise" as required by the NSPA. Thus, "CPL 40.20(2) (f) 
was evidently written for the purpose of preventing people in the 
exact situation of [this defendant] from relying on the 
protection given by CPL 40.20(2)" ( Matter of Polito v. Walsh , 8 
NY3d, at 687) . 


The Court notes that CPL 40.20(1), which states that: 

A person may not be twice prosecuted for the 
same offense, . . . 

does not assist defendant. As the Court of Appeals has held, the 

same offense "means the same in both fact and law. . .At bar, the 

prosecutions are not the same in law because they are based upon 

separate and distinct statutes...." ( Matter of Polito v. Walsh , 8 

NY3d, at 688, quoting Matter of Klein v. Murtaqh , 34 N.Y.2d 988 

[1974], aff'g on op below 44 A.D.2d 465, 467 [2d Dept. 1974]). 

Defendant tries to argue that CPL 40.20(2) (f) does not apply 
because the federal case was not dismissed for insufficiency of 
evidence, as required by CPL 40.20(2) (f ) , but rather, for facial 
insufficiency of the indictment (Defense Motion : 37n . 11) . The 
Court disagrees. As the People point out, the Second Circuit 
specifically noted that although it was "odd" that the parties on 
appeal had framed their arguments in terms of facial 
insufficiency of the indictment since the case had gone to trial, 
their decision was the same under either analysis (see People's 
Response:17; United States v. Aleynikov , 676 F.3d, at 76, n. 3). 
Thus, CPL 40.20 (2) (f ) ' s requirement that the federal case be 
dismissed for insufficiency of a federal element is satisfied. 

As to defendant' s claim that the instant prosecution is 
barred because Judge Denise Cote of the Southern District of New 


York dismissed the count based on a violation of the CFAA charge 
prior to trial, that claim is meritless . Because that count was 
dismissed prior to trial, defendant was never placed in jeopardy 
for it (see CPL 40.30) and defendant is not charged with the 
equivalent cyber-crime statute, namely, Penal Law § 156.10. 
Specifically, the CFAA count was dismissed from the federal 
indictment during motion practice because the federal anti- 
hacking statute required proof that the defendant had gained 
access to Goldman's computers without permission or 
authorization. However, neither of the crimes defendant is 
charged with in his State indictment requires that his access to 
Goldman's computers be unauthorized. 

Accordingly, the instant prosecution is not barred under 
double jeopardy grounds and is expressly permitted under CPL 
40.20 (2) (f) . 

Defendant further argues the doctrine of collateral estoppel 
mandates that the indictment be dismissed. Collateral estoppel 
"means simply that when an issue of ultimate fact has once been 
determined by a valid and final judgment, that issue cannot again 
be litigated between the same parties in any future lawsuit" 
( People v. Sommerville , 3 Misc3d 593, 598 [Sup. Ct Kings Cop. 
2004], quoting Ashe v. Swenson , 397 U.S. 436, 443 [1970]). If 
"the 'ultimate fact' issue, i.e., that which is essential to 


conviction in the later trial is resolved in defendant's favor, 
the subsequent prosecution is foreclosed" ( People v. Sonimerville , 
3 Misc. 3d, 598, citing People v. Goodman , 69 N.Y.2d 32, 38 
[1986]). "However, if the resolved issue concerns an 
'evidentiary' fact tending to establish guilt at the second 
trial, the subsequent prosecution is not precluded, only , further 
litigation' of this 'evidentiary' fact is prohibited" ( id. , 
citing People v. Acevedo , 69 N.Y.2d 478 [1987]). 

It is well settled that the doctrine of collateral estoppel 
applies to criminal proceedings as well as civil ones ( People v. 
Goodman , 69 N.Y.2d 32, 37 [1986] [citations omitted]; see also 
People v. Hilton , 95 N.Y.2d 950, 952 [2000]; Sommerville , 3 
Misc3d, at 598) , and operates to "bar relitigation of issues 
necessarily resolved in defendant's favor at an earlier trial" 
( People v. Acevedo , 69 N.Y.2d 478, 485 [1987]; see also People v. 
Evans, 94 N.Y.2d 499, 502 [1999]; see also Sommerville , 3 Misc3d, 
at 598) . 

Although part of the constitutional guarantee against 
double jeopardy (Goodman, 69 N.Y.2d at 37, citing Ashe v. 
S wens on , 397 U.S. 436; People v. Moore , 220 A.D.2d 621, 622, 
appeal denied 87 N.Y.2d 923), double jeopardy differs from 
collateral estoppel in that double jeopardy applies to 
subsequent prosecutions involving the same offense and "may 


attach long before the jury has rendered a verdict, whereas 
collateral estoppel applies only when there has been a final 
judgment" followed by new or different charges arising from the 
same incident ( Goodman , 69 N.Y.2d at 37-38). 

However, "[b]efore collateral estoppel may be applied in a 
subsequent criminal case, there must be an identity of parties 
and issues and a prior proceeding resulting in a final and valid 
judgment in which the party opposing the estoppel had a ^ull 
and fair opportunity' to litigate" ( People v. Suarez , 40 AD3d 
143, 152 [1 st Dept.], lv. denied 8 NY3d 991 [2007], quoting 
Goodman, 69 N.Y.2d at 38 [citations omitted]). The defendant 
must also establish that the issue was necessarily decided in 
the first proceeding ( Acevedo , 69 N.Y.2d at 484-485; Goodman , 69 
N.Y.2d at 40)" ( Sommerville , 3 Misc3d, 598-599). "The 
[collateral estoppel] rule is not to be applied with a 
hypertechnical approach but with realism and rationality" 
(Acevedo, at 69 N.Y.2d at 487, quoting People v. Goodman , 69 
N.Y.2d at 40; see also People v. Roselle , 84 N.Y.2d 350, 357 
[1994]). Applying these principles to the instant case, it is 
evident that collateral estoppel is inapplicable. 

Here, the jury's findings lost their preclusive effect as 
defendant' s federal judgment of conviction was reversed on 
appeal, and therefore, "does not constitute 'a final and valid 


judgment,' the jury's factual findings lose their preclusive 
effect" ( id. , citing People v. Brown , 59 A.D.2d 928 [2d Dept. 
1977]; see also People v. Plew , 52 N.Y.2d 58, 69 [1980] 
[Fuchsberg, J. concurring] ; Matter of McGrath v. Gold , 36 N.Y.2d 
406, 412 [1975]). Moreover, there is no identity of parties and 
issues as the New York County prosecutor did not have a "full 
and fair opportunity" to litigate in defendant's federal matter. 
Accordingly, defendant's motion for an order dismissing the 
instant indictment on collateral estoppel grounds is denied. 

Defendant attempts to get around the problem in his 
arguments by suggesting that the "dual sovereignty" exception to 
the Fifth Amendment does not apply because the State prosecutors 
are acting as a "tool" for the Federal prosecutors and the State 
prosecution is merely a "sham and a cover" masking a second 
prosecution by the same sovereign as the first. However, there 
is no evidence, apart from defendant's speculation, to support 
this claim. Indeed, according to the People, they, upon reading 
the decision of the Second Circuit reversing and dismissing 
defendant's case, decided on their own to see if there was a 
viable State criminal prosecution before approaching the feds . 
Hence, the State prosecution cannot be considered a sham or 
cover for masking a second federal prosecution given the 
differences in the conduct prohibit by the respective statutes. 


As to defendant' s claim that the indictment must be 
dismissed as it is a "vindictive prosecution," the Court finds 
this claim also to be without merit. Defendant claims that he 
is entitled to a presumption of vindictiveness as he speculates 
"that he is being punished not for any crime he may have 
committed, but for having the audacity to exercise his 
constitutional right to appeal his federal sentence and 
conviction and to prevail on that appeal" (DML:54). According 
to defendant, the Second Circuit's reversal of his federal 
conviction was "deeply embarrassing to the United States 
Attorney's Office and the Federal Bureau of Investigations, and 
particularly to the prosecutors and agents involved in the case" 
(DML:54). 4 Accordingly, defendant posits, their animus to 
defendant is the reason for the State prosecution. 

In this case, the State of New York is a separate and 
distinct sovereign than the federal government. Neither stands 
in the shoes of the other. Therefore, the fact that the State 
indicted defendant for violating New York State criminal 
statutes after the Circuit Court of Appeals for the Second 
Circuit overturned defendant' s federal conviction and dismissed 

defendant seems to believe that the embarrassment caused by 
the extensive press coverage in this case relating to the 
reversal of defendant's federal conviction (DML:55). 


the underlying indictment, does not amount to a vindictive 
prosecution as defendant is being prosecuted "by two different 
sovereigns , each acting independently under its own laws and in 
its own interest without any control of or by the other, [thus,] 
render [ing] inapplicable the concept of prosecutorial 
vindictiveness" ( United States v. No , 699 F.2d 63, 68 [2d Cir. 
1983]). Here, DANY, in deciding whether to pursue a subsequent 
prosecution, took into consideration what it deemed to be an 
"inadequate result" obtained in defendant's federal case ( id. ) . 
The fact that DANY did not originally pursue criminal charges 
against defendant in light of the federal proceedings, in no way 
prevents the state government, as represented by DANY, from 
protecting a legitimate New York State interest if it believes 
that defendant' s federal proceeding has failed to adequately 
protect its interests. 

Moreover, defendant has presented no evidence that the 
State of New York was acting at the behest of the federal 
government in bringing the state charges against him, or that 
the federal government acted as an agent of the State in 
prosecuting him for violation of either the EEA or the NSPA. 
Though defendant makes conclusory accusations of conspiracy and 
collusion between the state and federal prosecutors, the record 
indicates simply that, after defendant's federal conviction was 


vacated and the underlying indictment dismissed, DANY undertook 
an independent analysis and concluded that "significant" New 
York State interests "had been left unvindicated by the federal 
proceeding." While defendant complains that the State 
prosecution was motivated by the dissatisfaction of the United 
States Attorney with the outcome of the federal proceeding 
against him as a result of the Second Circuit's decision, even 
assuming arguendo that was a factor in the State's decision to 
prosecute defendant, it was plainly a permissible consideration 
in the assessment of whether the State's interests have been 
vindicated (see United States v. Arena 180 F.3d 380, 389-400 [2d 
Cir. 1999], cert denied 531 US 811 [2000]). 

Even assuming, as defendant does, that the timing of this 
indictment, coupled with the defendant's successful appeal of 
his federal court conviction, raises an inference that the 
prosecution may have been motivated for vindictive reasons , 
these factors alone do not create a presumption of 
vindictiveness ( People v. Bell , 11 Misc3d 1070(A) [Cty. Ct. 
Monroe Co. 2006], aff'd on opinion below 46 AD3d 1465 [4 th Dept. 
2007], citing United States v. Koh , 199 F3d 632, 639-640 [2d 
Cir. 1999]) . Defendant has failed to present any direct 
evidence, such as a statements by a prosecutor that evinces a 
vindictive motive or that the district attorney's office, is, in 


fact, prosecuting defendant for vindictive reasons ( id. ) . 
Therefore, this portion of the defendant's motion must also 

Turning to defendant's next claim, namely, that the instant 
indictment should be dismissed in the interests of justice 
pursuant to CPL 210.40, defendant claims that "from July 3, 2009 
to the present date has really been a living hell" for him 
(January 18, 2013 oral argument minutes ["OR"]: 4). Defendant 
complains that he has been "punished enough" because, as a 
result of his federal prosecution, he has lost his home, his 
family, his savings and his reputation (OR:5-6). However, as 
the People noted, "the defendant's conduct [was], in fact, 
criminal conduct. The act of duplicating or re-reproducing 
(sic) computer data or computer program[s] is criminal behavior." 
Accordingly, defendant's motion is denied. 

A Court has the discretion to dismiss a criminal action in 
the interests of justice and fairness so that justice may 
prevail over the strict letter of the law and to prevent a 
miscarriage of justice (see People v. Clayton , 41 A.D.2d 204 [2d 
Dept. 1973]; People v. Andrew , 78 A.D.2d 683 [2d Dept. 1980]; 
CPL 210. 40 [1]). However, the Courts have made it clear that the 
discretionary power to dismiss an indictment in the interest of 
justice is to be used sparingly and should only be granted when 


the facts and circumstances are such that to deny the motion 
would shock the conscience of the Court {see People v. Rickert , 
58 N.Y.2d 122 [1983]; People v. Quadrozzi , 55 AD3d 93, 103 [2d 
Dept. 2008]; People v. Harmon , 181 A.D.2d 34, 36 [1st Dept. 
1992]; People v. Debiasi , 160 A.D.2d 952 [2d Dept. 1990]; ). 
Therefore, the Court must scrutinize the merits of the 
defendant' s application and weigh the respective interests of 
the defendant, the complainant and the general public to see if 
compelling factors must exist that "clearly demonstrat [e] 
that. . .prosecution upon such indictment or count would 
constitute or result in an injustice" (CPL § 210. 40 [1] ; see CPL 
§ 210.20; see also People v. Jenkins , 11 NY3d 282, 287 [2008]; 
People v. Belkota , 50 A.D.2d 118 [4th Dept. 1975]; People v. 
Clayton, 41 A.D.2d, at 208) . 

In deciding a motion to dismiss in the interest of justice, 
the ten factors that the Court must, to the extent applicable, 
examine and consider are: 

(1) seriousness and circumstances of the offense; 

(2) the extent of harm caused by the offense; 

(3) the evidence of guilt, whether admissible at trial 
or not; 

(4) the history, character and condition of the 

(5) any exceptionally serious misconduct of law 


enforcement personnel in the investigation, arrest and 
prosecution of the defendant; 

(6) the purpose and effect of imposing upon the 
defendant a sentence authorized for the offense; 

(7) impact of dismissal on the safety or welfare of the 

(8) impact of dismissal upon the confidence of the 
public in the criminal justice system; 

(9) where the Court deems it appropriate, the attitude 
of the complainant or victim with respect to the 
motion; and 

(10) any other relevant factors indicating that a 
judgment of conviction would serve no useful purpose 

(CPL 210.40; see People v. Jenkins , 11 NY3d, at 287). 

Considering these factors, both individually and collectively, 

set forth in CPL 210.40(1) (a-j), this Court is not convinced 

that this is the type of extraordinary circumstances 

contemplated by the statute requiring dismissal in the interest 

of justice. 

Turning to these factors, with respect to the seriousness 
and circumstances of the offense, the instant case is neither 
rare nor unusual . Defendant was indicted and accused of 
committing the "E" felony offenses of Unlawful Duplication of 
Computer Material in the First Degree (Penal Law § 156.30 [1]) 
and Unlawful Use of Scientific Material (Penal Law § 165.07) (two 
counts). The counts arise from defendant's alleged scheme to 


steal Goldman Sachs' source code and computer programs by 
copying and reproducing them. As the Court of Appeals has 
recognized, in 1986, the New York State Legislature enacted 
these statutes in an effort to combat the increase in computer 
crime and abuse (see People v . Versaggi , 83 N.Y.2d 123, 128 
[1994]; see also People v. Katakam , 172 Misc. 2d 943, 945 [Sup. 
Ct. N.Y. Co. 1997]). Clearly, these are serious crimes. 

As to the extent of harm caused by the offense, this is not 
a victimless crime. Clearly, Goldman Sachs and their clients 
are victims of defendant' s actions . As the Court in a similar 
case noted, "[t]he harm suffered by Goldman Sachs ... can be 
measured by the cost of their investigation and the disruptions 
they may have suffered" ( People v. Katakam , 172 Misc. 2d, at 949- 
950) . 

As to the evidence of guilt, whether admissible at trial or 
not, it appears to be overwhelming based on the Grand Jury 
presentation. At the Grand Jury presentation, the People 
presented testimony by eyewitnesses, documents and e-mails that 
showed how defendant violated the Unlawful Duplication of 
Computer Material in the First Degree (Penal Law § 156.30 [1]) and 
Unlawful Use of Scientific Material (Penal Law § 165.07) 
statutes . The Court notes that while the Second Circuit reversed 
defendant' s conviction based on a technicality in the federal 


statute, defendant was convicted of similar acts by a federal 
jury. Further, while at defendant's federal trial, defendant's 
supervisor Adam Schlesinger, may have testified that defendant 
had full access to the source code relating to Goldman's HFT 
business and Paul Walker of Goldman, may have testified that as 
part of his job, defendant not only had access to the source code 
and was required to make copies of the code in performing his 
daily functions, defendant was limited to using his access to 
that material within the confines of his employment and not free 
to copy it for any reason unrelated to Goldman's business (see 
DML: 66) . 5 

As to the history, character and condition of the defendant, 
defendant states that he was born in Moscow, Russia and he came 
to the United States determined "to build a successful life" 
(DML: 67) . He further states that he is a father and has had no 
other contact with the law apart from this case . Defendant is a 
"highly skilled programmer who was poised to put his prodigious 
skills back to use" (DML: 67) without any criminal history. 
However, without disputing the defendant's accomplishments, or 
rejecting their significance, his contributions do not justify 
dismissal of charges (see People v. Kelley , 141 A.D.2d 764 [2d 

DML" refers to Defendant's Memorandum of Law. 


Dept. 1988] ["The mere fact that the defendant may be a police 
officer ... or has an exemplary background ... is insufficient to 
justify the exercise of the court's discretion" to dismiss an 
indictment charging the defendant with DUI] [citations omitted] ; 
People v. Varela , 106 A.D.2d 339, 340 [1st Dept. 1984] [dismissal 
in interest of justice not warranted based on defendant's 
" * exemplary' background at work, in the Air Force, as a father 
and as a civic affairs volunteer"] ; see also People v. Norman , 5 
Misc3d 1016 [A] ) . 

Specifically, defendant's argument that the case should be 
dismissed because defendant has already served a year in jail as 
well as "suffered economic [and reputation] loss and humiliation 
as a result of these events is not compelling" ( People v. 
Katakam, 172 Misc. 2d, at 950) . Unfortunately for defendant, his 
character does not warrant a dismissal in the furtherance of 
justice. Indeed, a lack of a prior criminal conviction and 
defendant' s good standing in the community do not constitute 
compelling reasons for dismissal (see People v. Riccelli , 149 
A.D.2d 941, 942 [4 th Dept. 1989]; People v. Varela , 106 A.D.2d, 
at 340; People v. Litman , 99 A.D.2d 573 [3 rd Dept. 1984]). As 
other courts have observed, "[t]he same argument [s] can be made 
by anyone in defendant's position, and ignores the fact that the 
Legislature intended to criminalize the type of behavior of which 


he is accused in order to deter it. Society is ever more 
dependent on the computer and the potential harm by those who are 
in a position to abuse their expertise is considerable. It is 
unfortunate that there may be collateral consequences to 
defendant should he be convicted, but these do not warrant 
dismissal of the indictment" ( People v. Katakam , 172 Misc. 2d, at 
950) . 

As to any exceptionally serious misconduct of law 
enforcement personnel in the investigation, arrest and 
prosecution of the defendant this Court finds that there has been 
none of which the Court is aware. Defendant's complaint of 
misconduct is based on his view that the FBI misled the Court to 
issue an arrest warrant and that the instant prosecution by the 
People is just an extension of the failed federal prosecution is 
meritless. While it is true that the People only chose to 
proceed once the federal courts stated that they did not have 
jurisdiction, there is no evidence that the FBI or the United 
States Attorney for the Southern District of New York in any way 
influenced the People's choice to proceed. 

As to the purpose and effect of imposing upon the defendant 
a sentence authorized for the offense, the purpose of every 
sentence passed on a criminal offender is directed towards 
achieving one or more of four basic ends: deterrence, separation, 


rehabilitation and retribution. The major underlying theory 
behind these sentencing ends is that the fear of possible death, 
incarceratory punishment or suffering will operate in some way in 
the minds of the lawbreakers to deter them from committing future 
criminal acts, thus, resulting in a determinant effect on 
offender recidivism (Burns, Philosophy of Sentencing [U.S. 
District Court, Portland, Oregon] ; The National Judicial College, 
"Sentencing", ABA at University of Nevada, Ch. 1, at 1-5 
[September 1978] as cited in People v. Vecchio , 139 Misc. 2d 165, 
169 [1987] ) . 

Considering, individually and collectively, the "four basic 
ends" to sentencing, defendant faces a potential sentence of up 
to four years imprisonment. The deterrent value in the possible 
maximum sentence is obvious . The retribution end is also obvious 
in the loss of defendant's reputation and his economic loss. 

The Court does not believe rehabilitation is relevant under 
the facts of this case . 

Additionally, in considering the purpose and effect of 
imposing a sentence upon defendant, the State's general interest 
in imposing the authorized sentence is obvious ; the citizens of 
New York have an interest in having a guilty defendant sentenced 
for computer related offenses which are serious offenses . 
Deterrence is a legitimate State's purpose. That the People 


offered defendant a plea to a non-jail sentence is of no moment 
as to whether the indictment should be dismissed. It is the 
Court, and not the People, who decides what the appropriate 
sentence is in any given case, and it will be this Court that 
decides whether a period of incarceration is merited under the 
facts of this case (see People v. Farrer , 52 N.Y.2d 302, 305-306 
[1981]) . Moreover, while defendant focuses on an incarceratory 
sentence, he forgets that there are alternative sentences that 
this Court can also impose such as probation, where defendant's 
conduct would be monitored by the Department of Probation. 

As to the impact of dismissal on the safety or welfare of 
the community, this Court does not believe that a dismissal in 
this case will have any impact one way or the other. 

As to the impact of dismissal upon the confidence of the 
public in the criminal justice system, the Court believes that 
dismissal will have a negative impact. Given the continuing and 
growing reliance on computers, prosecution for these crimes can 
serve to remind the Public that no one is above the law and 
dismissal of the indictment under these circumstances would 
seriously undermine "the confidence of the public in the criminal 
justice system." 

Finally, the defendant has failed to present "any other 
relevant fact indicating that a judgment of conviction would 


serve no useful purpose . " 

The court has evaluated the merits of defendant's arguments, 
as well as the applicable factors enumerated in PL 210.40 and 
found them to be insufficient to rise to the level required for 
the granting of a motion to dismiss in the interest of justice 
(see CPL 210.40; People v. Clayton , 41 A.D.2d, at 204). What has 
been clearly demonstrated is that the offense with which 
defendant is charged is a serious and harmful one and that the 
criteria prescribed in CPL 210.40(1) indicates that dismissal in 
furtherance of justice is inappropriate. Accordingly, the motion 
to dismiss in the interest of justice is denied. 

Defendant' s motion for a Huntley-Mapp-Dunaway hearing is 

Defendant's motion for discovery, including with respect to 
how the People came to initiate the instant prosecution and the 
entire Goldman Trading System, is granted to the extent supplied 
by the People. However, if defendant believes that any response 
to his demand for Discovery or his request for a Bill of 
Particulars is inadequate, he may move to reargue within 10 days 
of the service of a copy of this Pretrial Decision and Order. 
The People are directed to preserve all evidence including 
electronically recorded matter and physical exhibits seized by 
law enforcement officials or their agents, and all notes, records 


memoranda and reports prepared by law enforcement officials or 
their agents , including all recorded police communications . 

Specifically, the Court notes that discovery matters are 
"regulated by statute", i.e. CPL Article 240 ( Matter of Miller v. 
Schwartz, 72 N.Y.2d 869, 870 [1988]; see People v. Colavito , 87 
N.Y.2d 423, 427 [1996]; Cons tan tine v. Leto , 157 A.D.2d 376, 378 
[3d Dept. 1990], af f ' d 77 N.Y.2d 975 [1991]) and may not be 
circumvented by the use of a subpoena. A subpoena may also not 
be used merely to ascertain the existence of evidence (see Matter 
of Terry D. , 81 N.Y.2d 1042, 1044 [1993]; People v. Gissendanner , 
48 N.Y.2d 543, 551 [1979]; People v. Wallace , 239 A.D.2d 272, 273 
[1st Dept. 1997] ; ( Matter of Office of Attorney Gen, of State of 
N.Y. . 269 A.D.2d 1, 13 [1 st Dept. 2000]; Law Firm of Ravi Batra . 
P.C. v. Rabinowich , 77 AD3d 532, 533 [1 st Dept. 2010]). Indeed, 
a defendant may not use a subpoena to conduct a "fishing 
expedition" ( United States v. Nixon , 418 U.S. 683, 700 [1974]), 
in the hope of "unearthing [ ] some unspecified information" that 
he is not entitled to under the discovery statutes or otherwise 
( Gissendanner , 48 N.Y. 2d at 549; see People v. Villacorte , 76 
AD3d 911 [1 st Dept.], lv. denied 15 NY3d 956 [2010]). Rather, a 
subpoena must seek "to compel the production of specific 
documents that are relevant and material to facts at issue in a 
pending judicial proceeding." Matter of Terry D. , 81 N.Y. 2d, at 


1044 (internal quotations omitted) . 

Indeed, defendant must put forth "some factual predicate" 
that would make it "reasonably likely that the documentary 
information will bear relevant and exculpatory evidence" and not 
just potentially relevant evidence ( Constantine v. Leto , 157 
A.D.2d 376, 378 [3d Dept. 1990], af f ' d 77 N.Y.2d 975 [1991]; 
Gissendanner , 48 N.Y.2d at 548-550; see Villacorte , 76 AD3d 911 
[1 st Dept. 2010]) . The showing may not be based on speculation 
( People v. Baldwin , 211 A.D.2d 638 [2nd Dept. 1995]). 
Additionally, a subpoena may not be overbroad nor unreasonably 
burdensome as a "witness is not required to cull the good from 
the bad" ( People v. Doe , 39 A.D.2d 869, 870 [1st Dept. 1972]; see 
Matter of Grand Jury Subpoenas , 72 N.Y.2d 307, 315-16 [1988]; 
Hynes v. Moskowitz , 44 N.Y.2d 383, 394 [1978]; People v. 
Zilberman , 297 A.D.2d 517 [1st Dept. 2002]). 

With this in mind, the People argue that defendant, having 
been provided with all the discovery to which he is entitled in 
the People's Voluntary Disclosure Form ("VDF") , is attempting to 
obtain more than that which he is entitled (People's MOL: 56) . 
They accuse him, in effect, of being on a fishing expedition. 
The Court agrees . 

With respect to defendant' s specific request for discovery 
into the circumstances under which the New York County District 


Attorney's Office ("DANY") decided to indict him, including but 
not limited to leave to subpoena the DANY and its files and 
communications regarding defendant and to take depositions of 
DANY attorneys and staff, the People in their response to 
defendant' s motion have disclosed all the facts about how the 
instant prosecution was initiated to which defendant is entitled 
under CPL 240.20. 

With respect to defendant's application to "inspect" 
Goldman's Trading System and "to make such tests and inspections 
to aid his expert witnesses who will be called at trial (Defense 
MOL:96). Goldman's computer system is not discoverable nor is the 
"entire Trading System" (Defense MOL: 96) within the People's 
possession, custody or control nor do they intend to introduce 
the entire system into evidence at trial (see CPL 240.20; People 
v . Robinson , 53 AD3d 63, 73-74 [2d Dept. 2008]; People v. 
Villacorte , 76 AD3d 911 [1 st Dept.]), lv. denied 15 NY3d 
956 [2010]). Indeed, the People state that they will only 
introduce the specific materials defendant is charged with 
copying and transferring (People's MOL: 57). Therefore, all 
defendant is entitled to receive is those materials defendant is 
charged with misappropriating, material to which both the Court 
and the People believe that defendant and his experts already 
have access (see United States v. Lee , U.S. dist Lexis 24972, at 


*7 (ND Cal 2009) . 

The Court also finds that defendant' s request for access to 
the entire Goldman Trading System to be overbroad and based on 
little or no factual predicate. A subpoena is not meant to be 
used as a general investigative tool, but rather as a means of 
targeting specific documents (see Cons tan tine . 157 A.D.2d at 
378) . 

Based on the submissions before the Court, it is clear that 
the contents of Goldman's "entire Trading System" are not at 
issue nor is it necessary for defendant to inspect any of 
Goldman's confidential and proprietary material that is unrelated 
to the charges in this case. Accordingly, the request for 
discovery and inspection of the entire Goldman Trading System is 
denied . 


Dated; April 5, 2013